Free Motion for Leave to File - District Court of Connecticut - Connecticut


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Date: March 22, 2007
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Case 3:00-cr-00158-AWT Document 92 Filed O3/23/2007 Page 1 of 3
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
UNITED STATES OF AMERICA :
: 3:00-CR-158 (AWT)
v. 1 3:04-CV-2031 (AWT)
MIGUEL GUERRERO-CEDENO, March 22, 2007
GOVERNMENT’S MOTION FOR LEAVE TO FILE OUT OF TIME AND
RESPONSE TO ORDER RE: AMENDMENT
TO PETITION
On November 20, 2006, the Court issued an Order to Show Cause directing the
Govemmcnt to file a response to an amendment to a motion under 18 U.S.C § 2255 Hled bythe
defendant., Miguel Guerrero-Ccdeno, also known as "I\/Iiguel Machuca." The Govemmcnt has
previously responded to the defcndant’s earlier claims on January 5, 2005 and on December 15,
2005. Govemmcnt counsel did not receive a hard copy ofthe defendant’s latest tiling, and
apparently overlooked the entry ofthe Court’s order, matters for which the undersigned
apologixes. The defendant now has added claims that a quantity ofcocaine base above and
beyond the minimum charged in the indictment was impermissibly attributed to him, and that he
should have been afforded relief under the so-called "safety valve." The Government
respectfully moves the Court to enlarge the time within which it may respond to the Court’s
order, and to entertain the following response.
The defendant’s new claims arc without merit.
The first claim seems to be based upon an application of United States v. Booker, 543
U.S, 220 (2005) and, implicitly, Apprencli v. New Jersey, 530 U.S. 466 (2000), to the instant
case. However, the Court ofAppeals has addressed the retroaetivity of both cases on collateral
review, and has concluded that neither case is retroactive. See Guzman v. Unziterl States, 404

Case 3:00-cr-00158-AWT Document 92 Filed O3/23/2007 Page 2 of 3
F.3d 139. 142 (2d Cir. 2005)(B00/cer not retroactive); Coleman v. UI’1fI€([S{<'l[£?S, 329 F.3d 77, 89
(2d Cir. 20()3,)(Apprem[1` not retroactive). As the record before the Court at the time of
sentencing clearly supported its Endings in regard to the quantity attribution. which was
stipulated to by the defendant, the Ending was proper.
With respect to the "safety va1ve” claim, the defendant has never “truthfu11y provided to
the Government all information and evidence the defendant has conceming the offense or
offenses that were part ofthe same eourse of eonduet or ofa eommon sehenie or p1an," sg 18
U.S.C. § 3553(f)(5), and has therefore not qualihed for the reliefhe now seeks.
Accordingly, for all ofthe reasons set forth above and in the Government’s original and
second response, the Court should deny the defendant’s claim for relief.
Respectfully submitted,
KEVIN J. O’CONNOR
UNITED STATES ATTORNEY
[email protected] HALL
ASSISTANT U.S. ATTORNEY
Federal Bar No. CT05I53
157 Church Street, 23'“1 Floor
New Haven, CT 06510
Tel.: (203) 821-3700
Fax: (203) 773-5377
51OYL1Ol1.1l21i1Ql7`LISL1O]·.QO\’
2

Case 3:00-cr-00158-AWT Document 92 Filed O3/23/2007 Page 3 cf 3
CERTIFICATE OF SERVICE
I hereby certify that 0n this 22nd day 0f March 2007, a c0py cfthe fbregcing was scnt by
first—class mail t0:
MIGUEL GUERRERO-CEDEISIO, aka Miguel Machuca
Inmate # 13924-014
FCI ELKTON
P.O. BOX 10
LISBON, OH 44432
H. G 0n Hall
Assist nt U.S. Att0mey
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